The Better Letter: The Reality of Sin

If we believe in the reality of sin -- and, duh! -- we should default to limited and constrained government.

I begin with my thanks to those of you who emailed, texted, and DMed last week because TBL didn’t arrive as expected. Nearly all asked some variation of the same question: What’s goin’ on?

What was goin’ on was that life happened. I had a lot going on in my day job. Grandchildren were visiting.

I also wasn’t feeling well (Moderna #4). I simply didn’t get it done. Thanks to all of you for your forbearance. And thanks for coming back. “You can stay as long as you like.”

Nominees to the Supreme Court of the United States must be confirmed by the Senate, as happened with Ketanji Brown Jackson yesterday. When they appear before the Senate Judiciary Committee, nominees (including Judge Jackson) typically deploy what then-Professor, now Justice Elena Kagan called a “pincer movement,” whereby they decline to answer specific questions because doing so supposedly “might forecast a vote and thus contravene the norm of judicial impartiality,” while also refusing to answer general questions because judges deal in specific cases, not hypotheticals or abstractions. Accordingly, Senators must content themselves with discussions of “judicial philosophy.”

This week’s TBL will focus on judicial philosophy. I don’t usually deal with legal matters here or with my (now long-ago) experience as an attorney. I make an exception today.

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The Reality of Sin

When I was a kid, television choice consisted of the local affiliates of the three major broadcast networks – CBS, NBC, and ABC – plus one independent station. When I was home sick from school, that meant watching soap operas, game shows, or reruns of old network shows in syndication.

Years later (but still a long time ago), I represented one of those networks in litigation against a major syndicator. The network had sold the syndication rights to their old shows to the syndicator. The syndicator had to offer them to the network affiliates first. Any shows that didn’t sell there could then be offered elsewhere.

The contract had been drafted long before and I wasn’t involved. Renewals came as a matter of course. The litigation arose due to the advent of a new technology, unanticipated by the parties when the contract was drafted.

Videocassette recorders provided another means for watching old shows (interestingly, the networks then were astonished at the extent of the market for re-watching media). The syndicator claimed it had the right to create videocassettes of the old shows; the network claimed it had retained those rights. Candidly, nobody had anticipated that sort of market expansion.

The case would have been decided (if it went to trial, which it didn’t) by the terms of the contract, which had not contemplated VCRs. The settlement was dictated by the contract terms and each party’s evaluation of how likely its interpretation of the contract was to be upheld. That’s how such cases are decided – look at the contract and decide the best interpretation of the contract (or advocate for your side’s favored interpretation) in accordance with its terms.

That was how constitutional law had generally been practiced, too, until relatively recently: interpret the document in accordance with its terms and with the intent and expectations of everyone involved.

Abraham Lincoln, for example, understood that he could not act outside of the powers granted by the Constitution (Letter to Albert G. Hodges, April 4, 1864): “I am naturally anti-slavery. If slavery is not wrong, nothing is wrong. I cannot remember when I did not so think, and feel. And yet I have never understood that the Presidency conferred upon me an unrestricted right to act officially upon this judgment and feeling.” His role as President was to uphold the Constitution, not to impose his own standards of public morality.

Constitutional interpretation has never been monolithic, of course. By the time I got to law school in 1978, things were different.¹

The idea that America is governed by a “living” Constitution dates most directly to Woodrow Wilson. Progressives see constitutional interpretation as a dynamic process, evolving and adapting to new problems and circumstances even if the document is not formally amended. The Constitution is viewed as the living law of the land as it is transformed according to the necessities of the time and the situation.

Conservative critics were displeased. They saw a “living Constitution” as law untethered from text, created out of whole cloth by unelected judicial activists. Indeed, the most consistent Republican argument against the confirmation of soon-to-be-Justice Jackson is that she is a “judicial activist.”

In 1985, Attorney General Ed Meese delivered a famous address to the American Bar Association, advocating “a jurisprudence of original intention.”

When the Constitution was drafted, no other nation had a written document enumerating rights and powers established by the people and binding on the government. Writing it down to make it specific was precisely the point.

Meese explained that judges should not depart “from the literal import of the words” in the Constitution and argued, as Justice Story had two centuries earlier, that “[w]here the words admit of two senses, . . . that sense is to be adopted, which … best harmonizes with the nature and objects, the scope and design of the instrument.”

Thus, in his famous 1989 law review article, Justice Antonin Scalia described originalism’s main virtue as helping judges avoid the “main danger in judicial interpretation of the Constitution” — mistaking “their own predilections for the law.”

Again, however, constitutional interpretation and construction is difficult. Every schema has its problems and difficulties. The late legal scholar Ronald Dworkin, for example, (rightly) argued that originalists could not escape moral and political judgments whenever the language in the constitutional text is unclear, ambiguous, or capable of being read in multiple ways (which is often).

It is now fair to say, however, that originalism has carried the day. Notice how Judge Jackson described her judicial philosophy during her confirmation hearings: “I believe that the Constitution is fixed in its meaning,” she said. Judge Jackson expressly disclaimed “living constitutionalism,” which “infuses” the document “with my own policy perspective or … the policy perspective of the day.” Accordingly, “[t]hat is now the way in which constitutional interpretation is done.” That a nominee chosen by a Democratic president and facing a Senate controlled by Democrats saw it as necessary to describe her judicial philosophy that way proves the point.

To be sure, if nearly everybody agrees on the judicial approach but the same old differences in outcome remain, one might question how honest the debate is or even if the debate can be honest. Whether the stated goal is Justice Robert Brennan’s “human dignity” or implementing the intent of the Framers, it isn’t too cynical to acknowledge that the values of the deciding judge will tend to coincide with the discovered goal, especially in difficult cases.

Cue the new “common good” constitutionalists.

The leading proponent of CGC, Harvard Law’s Adrian Vermeule, argues that originalism has failed conservatism. In his view, the purpose of constitutional interpretation is not to discern what the Framers intended, or what the text says and means. Instead, Vermeule claims that within the “classical legal tradition,” political officials, including judges, understood that the purpose of the state is to secure the common goods of “peace, justice, and abundance,” to which he adds health and safety.

Vermeule thinks that Dworkin was entirely right about the centrality of moral principles to the law but thinks Dworkin used the wrong ones. He asserts that living constitutionalism is motivated by a liberal political morality that ignores the common good to serve an ever-expanding conception of individual autonomy.

For Vermeule, as increasingly for today’s progressives, political conflicts are ultimately theological and based on conflicting fundamental principles as to the purpose of human life. Accordingly, classic liberalism’s efforts to allow political disagreement over questions of how to live consistently with truth and goodness lead to an impoverished organization of communal life. In other words, individual liberty is a destabilizing force inimical to human flourishing and the common good.

Under common good constitutionalism, constitutional law will describe in “broad terms the authority of the state to protect the public’s health and well-being.” It will include protecting the weak from “scourges of many kinds — biological, social, and economic — even when doing so requires overriding” what have historically been the private rights of citizens. Contrary to the current written Constitution, CGC would not see strong rule as “presumptively suspect.” It would thus be reluctant to entertain narrow and precise interpretations of state power due to fears of potential abuse.

Since the state’s vision of the (alleged) common good is the be-all and end-all of political authority, it will necessarily act against citizens’ own conceptions and ideals as to what the good life entails. According to Vermeule, CGC insists law is an important “teacher and an inculcator of good habits” even – especially! – if (when) you think otherwise.

The baseline presumption of government would thus hold that state officials (whether members of executive, legislative, or judicial branches) have the capacity and, indeed, the duty to act whenever and however necessary to protect the common good. It’s the nanny state, empowered by an activist bureaucracy, all the way down. Thus, common good constitutionalism will favor a “powerful presidency ruling over a powerful bureaucracy.”

Vermeule wants us all to be subjected to what Thomas Merton called the “gnawing and prurient resentments of frustrated bureaucrats,” which is pretty much how C.S. Lewis envisioned Hell.

In other words, as Sohrab Ahmari argues, conservatives must “regulate compliance” with their moral orthodoxy through the coercive use of state power.

What could go wrong?

 Those who shill for CGC insist without evidence that its “strong executives” will act under commitments to legality, constitutional limits, and democratic controls imposed by law. The hows and whys remain unarticulated. Apparently, Vermeule is willing to assume good faith and fair dealing by government officials. Therefore, the judiciary should not be suspicious of state power and state action but should, instead, broadly adopt a disposition of “Thayerian deference” to the executive, the administrative state, and Congress, reserving to itself the modest role of policing the outer bounds of what is permissible by curbing only the clearly irrational, capricious, or ultra vires.

Vermeule’s state would have “ample authority” to terrify everyone. It could “protect the vulnerable from the ravages of pandemics [because “no constitutional right to refuse vaccination exists”], natural disasters, and climate change, and from the underlying structures of corporate power that contribute to these events.” Moreover, the current “jurisprudence on free speech, abortion, sexual liberties, and related matters will prove vulnerable under a regime of common-good constitutionalism.”

Zera Ya’icob was an Ethiopian philosopher who defended a form of intellectual freedom in his Hatata of 1667. He was torn between the religious sects that mingled in 17th Century East Africa, engaging with Muslims, Coptic Christians, Jesuit missionaries, African Jews, and the local Oromo people. Ya’icob found they all said the same thing: “My faith is right and those who believe in another faith believe in falsehood, and are the enemies of God.” At once stimulated and bewildered, he wondered, rhetorically, “Who would be the judge for such kind of an argument?”

When he isn’t doing the judging, Vermeule asks the very same question.

Vermeule and his acolytes differ from judicial progressives about the content of the values they seek to impose, but share their devotion to a moralizing government essentially unconstrained by the people it rules. In each case, a morally preening elite will control what we say, do, and even think. He forgets we serve no political sovereign here.

There are many reasons to oppose Vermeule’s vision. For me, one predominates. Vermeule – like the progressives – has a dangerously inadequate doctrine of sin. The Framers didn’t.

Our system of government provides limits, checks, and balances because it recognizes how evil humans can be. We need constant protection from governmental overreach. Any sane observer recognizes that limited government will feel inadequate to the problems we face and wishes things could simply be fixed, once and for all. Restraints and constraints aren’t sexy. But we default to them anyway because we know what we’re like.

Many on both the political left and the political right today reject the limited government of classic liberalism. That’s dangerous business.

We all have the authoritarian impulse to force our vision of what’s right on those who think otherwise. Sometimes we will even be right. But allowing government the unfettered authority to impose its will without the clear consent of the governed has never worked out well.

Examples from history could provide an exceedingly long list (and an enormous pile of corpses) coming from almost every possible political persuasion. These include the Inquisition, the  Terror of the French Revolution, Hitler’s elimination of any political opposition, Stalin’s purges, the Red Guard period in China, Pol Pot and his Killing Fields, the Argentine generals who dropped opponents into the ocean out of airplanes, and Putin’s attack on Ukraine.

Authoritarians are flat-out certain they’re right and that their (alleged) truth is lovely, elegant, and stylish, filled with slender, simple, shapely ideas. What they offer, instead, is grungy, bulky, noisy, ugly, and ordinary.

We’re all sinners. If they taught us nothing else, Mao and the Cultural Revolution taught us that human nature is not a blank slate. Those who ignore or try to alter it often end up leaving a lot of dead bodies around. “For all have sinned and fall short of the glory of God”, the Scripture says.

Check out the news on any random day to find plentiful proof. Or simply do a bit of self-reflection.

If you recognize the reality of sin (and you should), classic liberalism is a necessity. Progressivism doesn’t offer progress and what is common about CGC is the impulse to control. I fear there aren’t enough classic liberals left to save the day.

I pray I am wrong.

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Totally Worth It

Peter Thiel blasted Warren Buffett, Jamie Dimon, and Larry Fink yesterday as a “finance gerontocracy” opposed to a “revolutionary youth movement” that embraces Bitcoin. At the Bitcoin 2022 conference, the billionaire entrepreneur blamed the finance titans for the digital currency’s failure to reach $100,000. He singled out the Berkshire Hathaway CEO, 91, calling him a “sociopathic grandpa.” Here, as ever, it’s wise to remember that everyone talks their book.

Feel free to contact me via rpseawright [at] gmail [dot] com or on Twitter (@rpseawright) and let me know what you like, what you don’t like, what you’d like to see changed, and what you’d add. Praise, condemnation, and feedback are always welcome.

This is the best thing I read this week (or last). The winningest. The coolest. The funniest. The truest. The craziest. The loveliest. The sweetest. The smartest. The wittiest. The wisest. The nicest. The most fascinating. The most important. The most interesting. The most helpful. The most ridiculous. The most remarkable. The most insane. The most thought-provoking. The most noteworthy. The most significant. The most miraculous. The most powerful. The least surprising. Huh? Totally on-brand. Ouch. Duh. True. What could go wrong? Privilege. The shit-postification of our financial markets. No; just no. Well-earned.

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Flash forward to next year’s Super Bowl commercial wherein Chris Rock and Will Smith are in a very heated argument. Finally, the camera pulls back to reveal that they’re arguing over whether the most important thing about Lite beer is that it tastes great or that it’s less filling.

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Benediction

Thomas Merton wrote more than half-a-century ago. How fresh he sounds.

“If our life is poured out in useless words, we will never hear anything, will never become anything; and, in the end, because we have said everything before we had anything to say, we shall be left speechless at the moment of our greatest decision.”

May God grant us quiet.

“The greatest need of our time is to clean out the enormous mass of mental and emotional rubbish that clutters our minds and makes of all political and social life a mass illness. Without this housecleaning we cannot begin to see. Unless we see, we cannot think.”

May God grant us a housecleaning.

“Teach me to bear a humility which shows me, without ceasing, that I am a liar and a fraud and that, even though this is so, I have an obligation to strive after truth, to be as true as I can, even though I will inevitably find all my truth half poisoned with deceit.”

May God grant us Truth.

Amen.

Thanks for reading.

Issue 108 (April 8, 2022)

1. I am oversimplifying and condensing, of course. I’m ignoring many of the antecedents of living constitutionalism, including judicial pragmatism, and will ignore intricacies all around, including textualism, common good originalism, and various opinions and other writings that support or seem to support one view or another.